I would like to follow up on Phil Jackson’s fine letter (July 28) on the origins of the term “separation of church and state” and the First Amendment.
The First Amendment is the only amendment in the Bill of Rights to state specifically “Congress shall make no law …,” or even refer to Congress. It was written this way not only to prevent Congress from establishing an “official national religion,” but so individual states could have “official state religions.”
No Constitution or Bill of Rights could have been adopted without this distinction. During the times when the Constitution and later the Bill of Rights were being debated, somewhere between four and seven states had “official state religions” (depending on how one defines official). This allowed the states to go as far as taxing their citizens to build houses of worship and pay the clergy of the official religion, and denying the right to vote and hold office in that state unless you were a member of the official religion.
It was not until 1833 (42 years after adoption of the Bill of Rights) when Massachusetts legally separated itself from the Congregational church did the practice of “official state religions” end.
On a personal note, I find it a far leap between what the Bill of Rights was written to allow and what modern courts won’t allow.
There are some major flaws in Hall’s argument. First, every state, including Georgia, incorporates the first amendment in one way or another into their consitution. So arguing on federalism doesn’t get you anywhere. Of course, state judges, who are usually elected, often refuse to apply constitutional protections to unpopular groups, particularily to minority religious groups. The failure of states to ensure the rights of their citizens one of the reasons why we have the Fourteenth Amendment.
Amendment 14, Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This clause is what renders the “Congress shall make no law…” obsolete in the first amdendment. Because of the fourteenth, the first amendment no long applies to just congress. It applies to every level of government. This fact of constitutional law is regularly lost on right-wingers, who are convinced that they have a slam dunk argument.
These same people often don’t realize that in arguing that the First Amendment applies only to congress that they are affecting more than just the establishment clause. In fact, if their logic holds, then States would be free to prohibit free exercise of religion (bye, bye Baptists), abridge the freedom of speech (bye, bye Rush Limbaugh), the freedom of the press (bye, bye Fox News), the right of the people to peaceably assemble (bye, bye NRA gun clubs), or to petition the Government for a redress of grievances (bye, bye ACLJ).
By arguing in favor of establishing themselves over others, they are in turn establishing their own downfall. The First Amendment, coupled with the Fourteen Amendment guarentees that a Baptist child in Utah doesn’t have to recite Mormon prayers and a Mormon child in Texas doesn’t have to recite Baptist prayers.